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Zook v. Pesce

Court of Appeals of Maryland

May 16, 2014


Argued March 11, 2014.

Page 1115

Certiorari to the Court of Special Appeals (Circuit Court for Prince George's County). Case No. CAL10-26897. Crystal D. Mittelstaedt, JUDGE.

ARGUED BY: Michael Wein (of Greenbelt, MD) on brief FOR PETITIONER.

ARGUED BY: Brent E. Walthall (Kevin C. Gale, Gale & Walthall of Laurel, MD) on brief FOR RESPONDENT.

ARGUED BEFORE: Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Wilner, Alan M. (Retired, Specially Assigned), JJ.


Page 1116

[438 Md. 236] Adkins, J.

In this contest between two siblings, we consider the testamentary exception to the attorney-client privilege. Though both parties urge us to recognize this exception, they disagree on whether it was properly applied in this case. In the course [438 Md. 237] of resolving this dispute, we will take this opportunity to more clearly illustrate when and how the exception applies.


Eugene D. Zook (" the Decedent" ) died on December 24, 2008, after succumbing to prostate cancer at age 81. At the time of his death, the Decedent had three living adult children: Dennis Eugene Zook, Susan M. Pesce (" Respondent" ), and Mary Caroline Zook (" Petitioner" ). On November 20, 2007, the Decedent, with the help of attorney, Thomas P. Downs (" Downs" ), set up the Eugene D. Zook Living Trust (" the 2007 Living Trust" ). The Decedent amended the Living Trust on December 2, 2008 (" the 2008 Living Trust" ), twenty-two days before his death. The instrument designated Respondent as the trustee of the Living Trust.

Article Seven of the 2008 Living Trust specified that each of the Decedent's three children were to receive a one-third share of all remaining trust property. Although the distribution of the trust assets was equal, each heir's access to his or her share was not. Whereas the 2008 Living Trust directed the trustee to distribute the

Page 1117

shares of Dennis Zook and Susan Pesce outright and free of trust, the trustee was directed to maintain in trust Petitioner's share according to specific terms and conditions.[1]

On August 10, 2010, Petitioner, acting pro se, filed a " Complaint For Inspection Of Records" (" the Complaint" ) in the Circuit Court for Prince George's County against Pesce, Downs, Dennis Zook, and Catherine Zook, Dennis's wife. The [438 Md. 238] Complaint offered 18 counts, appearing to question the validity of the 2008 Living Trust.[2]

Pesce admitted the allegations of paragraphs 1, 2, 3, 7, and 13, denied 4-6, 8-12, and 14-18, and requested the Complaint be dismissed for, among other [438 Md. 239] reasons, failure to state a claim. A re-filed version of the motion to dismiss also claimed that the Complaint improperly joined parties who were not part of the administration of the Trust or Estate--namely, Downs, Dennis Zook, and Catherine Zook. This motion was granted for all parties except Pesce.

Trial took place on December 5, 2011. The court interpreted the Complaint as

Page 1118

alleging that the 2008 Living Trust must be set aside as invalid because the Decedent was not of sound mind to enter the new agreement.[3] After some discussion moderated by the court, Respondent agreed to provide an audit of the accounting of the trust assets. Notwithstanding this agreement, Petitioner requested access to a copy of the 2007 Living Trust. Downs, responding to Petitioner's subpoena for records, asserted that the 2007 Living Trust was a privileged communication with his deceased client, and that he would assert that privilege on the Decedent's behalf, as well as on the behalf of the trustee of the Living Trust, Pesce. The court honored that privilege and refused to allow Petitioner access to the 2007 Living Trust or allow any questions about its contents.

The court then moved on to the question of the soundness of the Decedent's mind at the time that the 2007 Living Trust was amended. After hearing from four witnesses called by Petitioner, the court found the revisions to the 2007 Living Trust " fair, proper and reasonable under the circumstances." The court then ruled that " Ms. Zook does not have a claim for relief based on paragraph 5 of her complaint." The court ordered the agreed-to audit of trust assets and dismissed the remainder of the complaint against Pesce.

[438 Md. 240] Petitioner appealed to the Court of Special Appeals, again appearing pro se . In an unreported opinion, the intermediate appellate court affirmed the Circuit Court. Petitioner, having acquired counsel, petitioned this Court for certiorari, which we granted to consider the following questions:[4]

1. Does the testamentary exception to the attorney-client privilege exist in Maryland?
2. Did the trial court err by recognizing the applicability of the attorney-client privilege to the unamended Living Trust?

Although the litigants present the first question as an unresolved issue, this Court has already recognized the existence of the testamentary exception, and we will not depart from our previous holding. See Benzinger v. Hemler, 134 Md. 581, 107 A. 355 (1919). With this Court's previous ruling in mind, we hold that the testamentary exception does not grant Petitioner the relief she seeks. Thus, we answer the second question in the negative.

Page 1119


The Testamentary Exception To The Attorney-Client Privilege

The attorney-client privilege[5] is " a rule of evidence that prevents the disclosure of a confidential communication [438 Md. 241] made by a client to his attorney for the purpose of obtaining legal advice." E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 414, 718 A.2d 1129, 1138 (1998). " The privilege is based upon the public policy that 'an individual in a free society should be encouraged to consult with his attorney whose function is to counsel and advise him and he should be free from apprehension of compelled disclosures by his legal advisor.'" State v. Pratt, 284 Md. 516, 520, 398 A.2d 421, 423 (1979) (quoting Harrison v. State, 276 Md. 122, 135, 345 A.2d 830, 838 (1975)). It has been recognized as " the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981). Indeed, for over 150 years, this Court has recognized that " [n]o rule is better established than 'that communications which a client makes to his legal adviser for the purpose of professional advice or aid shall not be disclosed, unless by the consent of the client for whose protection the rule was established.'" Fulton v. Maccracken, 18 Md. 528, 542-43 (1862). This privilege is reflected in the Maryland Code, as well. See Md. Code (1973, 2013 Repl. Vol.), § 9-108 of the Courts and Judicial Proceedings Article (" CJP" ).

The privilege survives even after the client's death. Invoking the purpose of fostering free communication between attorney and client, the Supreme Court has explained:

Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel. While the fear of disclosure, and the consequent withholding of information from counsel, may be reduced if disclosure is limited to posthumous disclosure in a criminal context, it seems unreasonable to assume that it vanishes altogether. Clients may be concerned about reputation, civil liability, or possible harm to friends or family. Posthumous disclosure of such communications may be as feared as disclosure during the client's lifetime.

Swidler & Berlin v. United States, 524 U.S. 399, 407, 118 S.Ct. 2081, 2086, 141 L.Ed.2d 379 (1998). Thus, even though the client may be deceased, the communication remains privileged.

[438 Md. 242] Nevertheless, the privilege is not absolute. Only those communications " 'pertaining to legal assistance'" and " 'made with the intention of confidentiality'" are covered by the privilege. E.I. du Pont, 351 Md. at 416, 718 A.2d at 1138 (quoting Burlington Industries v. Exxon Corp., 65 F.R.D. 26, 37 (D. Md. 1974)). Additionally, this Court has explained that the privilege does not " 'extend to communications made for the purpose of getting advice for the commission of a fraud' or a crime.'" Newman v. State, 384 Md. 285, 309, 863 A.2d 321, 335 (2004) (quoting United States v. Zolin, 491 U.S. 554, 563, 109 S.Ct. 2619, 2626, 105 L.Ed.2d 469 (1989)) .

Petitioner advocates that we recognize a testamentary exception to the attorney-client privilege, and Respondent concurs. Under this exception:

Page 1120

[C]onfidential communications between attorney and client for the purpose of preparing the client's will . . . are privileged during the testator's lifetime and, also, after the testator's death unless sought to be disclosed in litigation between the testator's heirs, legatees, devisees, or other parties, all of whom claim under the deceased client.

United States v. Osborn, 561 F.2d 1334, 1340 (9th Cir. 1977) (emphasis added). The rationale underlying this exception is that in the context of a contested estate, such disclosure " helps the court carry out the decedent's estate plan." Edward J. Imwinkelried, The New Wigmore, A Treatise on Evidence: Evidentiary Privileges § 6.13.2(b) (Richard D. Friedman ed., 2d ed. 2010). Were a court to exclude such evidence, " the court administering the will might reach an erroneous conclusion about the decedent's donative intent." Id. Thus, some states have elected to allow this exception to the attorney-client privilege based on the idea that " 'the deceased client would presumably want his communications disclosed in litigation between such claimants so that his desires in regard to the disposition of his estate might be correctly ascertained and carried out.'" Id. (quoting California Law Revision Comm'n Comment, Cal. Evid. Code § 957, Imwinkelried and Hallahan California Evidence Code Annotated 160 (2001)).

[438 Md. 243] Happily for both parties in this case, Maryland recognized the wisdom of the testamentary exception about a century ago. As this Court explained in Benzinger :

The rule, we think, is well stated in the note In re Young [' s Estate ], 17 L. R. A. (N. S.) 108, in which it is said: " It may be laid down as a general rule of law, gathered from all the authorities, that, unless provided otherwise by statute, communications by a client to the attorney who drafted his will, in respect to that document, and all transactions occurring between them leading up to its execution, are not, after the client's death, within the protection of the rule as to privileged communications, in a suit between the testator's devisees and heirs at law, or other parties who all claim under him."

134 Md. at 586, 107 A. at 357 (quoting Burdett A. Rich and Henry P. Farnham, editors, Annotation, Privilege of communications to attorney during preparation of will, 33 Utah 382, 94 P. 731, 17 L.R.A.N.S. 108 (1909)). The Benzinger Court held that the trial court erred by not permitting the attorney who drafted the will " to testify as to the transactions, circumstances, and instructions given by the testatrix to him in connection with the will and its preparation, as well as what was said by her at such time relative thereto." 134 Md. at 588, 107 A. at 357-58. The Maryland rule is consistent with that adopted in a majority of states. See E. S. Stephens, Annotation, Privilege as to communications to attorney in connection with drawing of will, 66 A.L.R.2d 1302 (1959).

As evidenced by this Court's holding in Benzinger, the testamentary exception has existed in Maryland for close to a century, despite never having been formally named. Nonetheless, it has been some time since this Court has spoken on the testamentary exception. For this reason, we reaffirm that in a dispute between putative heirs or devisees under a will or trust, the attorney-client privilege does not bar admission of testimony and evidence regarding communication between the decedent and any attorneys ...

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